PATRICIA ANNE TINKER v. STATE OF FLORIDA ( 2022 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ILLYA LIVINGSTONE TINKER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-3233
_______________________________
PATRICIA ANNE TINKER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-3235
[June 8, 2022]
Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Barbara Anne McCarthy, Judge; L.T.
Case Nos. 180005796CF10A and 18005621CF10A.
Carla P. Lowry of Lowry at Law, P.A., Fort Lauderdale, for appellant
Illya Livingstone Tinker.
Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant Patricia Anne Tinker.
Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas,
Assistant Attorney General, West Palm Beach, for appellee.
CONNER, C.J.
Patricia Anne Tinker (“Defendant Wife”) and Illya Tinker (“Defendant
Husband”) (collectively “Defendants”) appeal their judgments and
sentences after a jury found them guilty of over 100 counts related to an
alleged scheme involving both Defendants and their son (“the Son”)1.
Although Defendants filed separate appeals, we resolve the appeal with a
consolidated opinion. Defendants raise multiple issues on appeal. 2 We
agree with Defendants that the trial court erred in: (1) permitting a
detective to identify Defendant Wife’s and the Son’s signatures on
documents; and (2) its handling of a document improperly given to the jury
during its deliberations. We reverse and remand for a new trial, explaining
our reasoning below. We decline to address the remaining issues. 3
Background
The State’s case alleged that Defendants, along with the Son and other
co-defendants, effectuated a scheme whereby they obtained properties via
fraudulent deeds. Defendants were listed as corporate officers for two
companies (“the Companies”) Defendant Husband created. The Son was
also listed as a corporate officer for one of the Companies for at least some
period during the alleged scheme. Defendants and the Son were all tried
in front of the same jury, represented by the same counsel. At trial,
Defendants faced over 115 counts, including counts of aggravated white-
collar crime, grand theft, criminal use of personal identification
information, criminal use of a deceased individual’s personal identification
information, and unlawful filing of false documents or records against
property.
At trial, the State did not contest that at least some of the business
conducted by the Companies was legitimate. However, the State alleged
1Defendant’s son also appealed his judgments and sentences. Along with this
opinion, we also issue an opinion in the son’s case, reversing and remanding for
entry of a judgment of acquittal. See Tinker v. State, 4D19-3232 (Fla. 4th DCA
June 8, 2022).
2 We affirm without discussion an issue raised by Defendant Wife concerning
error in permitting a witness to testify as to the disposition of a civil case due to
lack of preservation. We also observe that the evidence was not proper unless
the defense opened the door.
3 The remaining issues which both Defendants raise are trial court error in: (1)
denying their motions for judgment of acquittal; (2) failing to hold a complete
Richardson hearing; and (3) denying their motions to preserve the appellate
record and improperly reconstructing the record. Defendant Wife also raises the
additional issues that: (1) the trial court and State improperly influenced a
defense witness not to testify; and (2) the trial court erred in denying her motion
under Florida Rule of Criminal Procedure 3.800(b) to correct sentencing error.
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that the Companies, through Defendants and the Son, also perpetrated
fraud. The State entered numerous deeds into evidence, which
purportedly transferred ownership interests in over thirty properties to
various entities, including the Companies, which the State connected to
Defendants. The State also entered numerous other documents into
evidence, including powers of attorney, that also connected Defendants to
the fraudulently obtained properties. Finally, the State called dozens of
witnesses who testified that either their purported signature, or the
purported signature of someone with whom they were sufficiently familiar,
on the deeds and documents was fraudulent. Witnesses included the
purported grantors of properties, family members of deceased individuals
who were purported grantors of the properties, and notaries.
Defendants did not contest that the various documents which the State
entered into evidence were fraudulent. Instead, Defendants’ theory of
defense was that they had no knowledge of the fraudulent activity and that
the fraud had been perpetrated by a rogue employee of Global
Management, along with the help of several other individuals. Background
information relevant to each issue on appeal which we address will be
provided within the sections addressing each issue.
The jury found Defendants guilty of 101 counts, covering all the
different subject matter crimes charged in the information. The trial court
granted Defendant Wife’s motion for downward departure and sentenced
her to thirty-five years in prison, followed by twenty years of probation.
The trial court sentenced Defendant Husband to a total of 177 years in
prison. Defendants gave notice of appeal.
Appellate Analysis
Defendant Wife’s and the Son’s Signatures
Additional Background
At trial, evidence was admitted that Defendant Wife was the only signor
on the bank accounts for one of the Companies.
During the lead detective’s testimony, the State asked him who
notarized a document relating to one of the fraudulently obtained
properties. The detective responded that Defendant Wife notarized the
document, and Defendants objected. The trial court sustained
Defendants’ objection based on an improper predicate. The State then
asked the detective if he had investigated the appearance of Defendant
Wife’s signature, and he responded that he had, by looking at “hundreds
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of checks that [Defendant Wife] has written out of her bank account” and
the signature contained in Defendant Wife’s driver’s license records.
Defendants again objected. However, this time, the trial court overruled
the objection, explaining, in front of the jury, that the detective was not
testifying as an expert, but based on the predicate which he provided and
“his training and experience, a lay person with sufficient training and
experience can testify.” Shortly after, when the State again asked the
detective to identify Defendant Wife’s signature on the document,
Defendants objected. Again, however, the trial court overruled
Defendants’ objection, and in front of the jury, stated that the detective
could identify Defendant Wife’s signature “[b]ased on his training and
experience and the predicate.”
Throughout the remainder of the detective’s testimony, he identified
multiple signatures on fraudulent documents and told the jury that the
signatures belonged to Defendant Wife. Additionally, the detective stated
that he had compared the Son’s driver’s license signature to several
signatures on documents connected to the fraudulently obtained
properties, and told the jury that the signatures belonged to the Son. The
detective’s testimony directly refuted Defendants’ theory of defense that a
rogue employee of one of the Companies had perpetrated the fraud, not
Defendants or the Son.
Analysis
Defendants argue that the trial court erred in allowing the detective to
identify Defendant Wife’s and the Son’s signatures on documents admitted
into evidence over their objection. “The standard of review for the
admissibility of evidence is abuse of discretion, limited by the rules of
evidence.” Carlisle v. State, 137 So. 3d 479, 484 (Fla. 4th DCA 2014).
“[A] witness testifying as to his opinion of the genuineness of a writing
must either be an expert or sufficiently acquainted with the handwriting
of the defendant to testify as a skilled witness.” Clark v. State, 114 So. 2d
197, 203 (Fla. 1st DCA 1959); see also Redmond v. State, 731 So. 2d 77,
78 (Fla. 2d DCA 1999). The detective was not called as an expert witness,
and his identification of Defendant Wife’s and the Son’s signatures was
not that of an expert. Thus, the only issue is whether the detective was
sufficiently acquainted with Defendant Wife’s and the Son’s signatures to
make the identification. See Clark, 114 So. 2d at 203.
To be sufficiently acquainted, a lay witness may identify an individual’s
signature where the lay witness has seen the individual sign his or her
name on different occasions. See Pittman v. State, 41 So. 385, 393 (Fla.
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1906) (“The witness was not testifying as an expert in handwriting, but to
the fact that he had seen defendant sign his name on different occasions,
and that he thought he was familiar with defendant’s signature. This
qualified the witness to testify as to the signature of defendant and to give
his opinion concerning the same.”); see also Clark v. Grimsley, 270 So. 2d
53, 57 (Fla. 1st DCA 1972) (finding sufficient lay witness identification of
handwriting where “the witness who identified each letter as the
handwriting of testatrix testified that for many years prior to testatrix’s
death she had visited testatrix practically every Thursday, did some
shopping for her, and was familiar with her handwriting”). However, a lay
witness cannot identify a signature where the familiarity with the
handwriting was “acquired for [the] purpose of litigation.” Proctor v. State,
97 So. 3d 313, 315 (Fla. 5th DCA 2012) (citing Clark, 114 So. 2d at 203);
Charles W. Ehrhardt, 1 West’s Fla. Practice Series, section 901.4 (2021
ed.) (“However, a lay witness may not give an opinion as to the handwriting
if the familiarity was acquired for the purpose of the litigation.”).
Here, in laying a foundation for his testimony that the Defendant Wife’s
and the Son’s signatures were on some of the fraudulent documents in the
case, the detective testified that he had viewed the records which he had
obtained during his investigation, including “hundreds of checks” written
out of the corporate bank account for which Defendant Wife was the sole
person authorized to sign checks, as well as Defendant Wife’s and the
Son’s signature on their driver’s licenses. In other words, the Detective
became “familiar” with Defendant Wife’s signature and the Son’s signature
only during his investigation. We must determine, then, if familiarity
acquired for the purposes of a criminal investigation is the same as
familiarity acquired for the purposes of litigation.
Defendants argue this case is like Proctor. In Proctor, two stolen checks
were cashed at a bank, and both checks contained an endorsement with
the defendant’s name. 97 So. 3d at 313. A video of the transaction showed
that the man who had presented the stolen checks had provided a Florida
driver’s license. Id. at 313–14. After consulting DAVID, 4 a detective
determined that the driver’s license number on the checks was “invalid,”
but found that the defendant’s driver’s license number was only several
digits off from the number endorsed on the stolen checks. Id. at 314. After
comparing the defendant’s photograph in DAVID, watching the video of
the transaction, viewing the defendant’s signature on file in DAVID, and
comparing the signature on the stolen checks, the detective determined
the defendant had cashed the stolen checks. Id. The defendant was
4“DAVID is the acronym for [Florida’s] Driver and Vehicle Information Database.”
Funderburk v. State, 264 So. 3d 980, 981 n.1 (Fla. 4th DCA 2019).
5
charged with two counts of uttering a forged check and two counts of grand
theft. Id. at 313.
On appeal, the Fifth District found that the trial court erred in denying
the defendant’s motion in limine and allowing the detective to testify as to
both his comparison of the defendant’s DAVID photo to the video and his
comparison of the defendant’s DAVID signature to the signature on the
forged checks. Id. at 315. Moreover, relevant to the instant case, as to the
detective’s testimony comparing the defendant’s signature on file in DAVID
to the signature on the forged checks, the Fifth District found that the trial
court erroneously allowed this testimony because the detective “was not
sufficiently familiar with [the defendant’s] handwriting to form a reliable
opinion, and candidly admitted that he was not an expert in handwriting
comparison.” Id. In finding that the detective was not sufficiently familiar
with the defendant’s handwriting to testify as a lay witness, the Fifth
District cited to Clark for the proposition that sufficient familiarity with
handwriting cannot be “acquired for [the] purpose of litigation.” Id. (citing
Clark, 114 So. 2d at 203). In other words, the Fifth District found that the
detective in Proctor, in gaining familiarity with the defendant’s signature
during his investigation, gained such familiarity “for [the] purpose of
litigation.”
We agree with the Fifth District’s reasoning and hold that the detective
in the instant case acquired familiarity with Defendant Wife’s and the
Son’s handwriting for the purpose of litigation, and thus, the trial court
erred in permitting the detective to identify their signatures.
The State argues that any error by the trial court was harmless. We
disagree. “The type of error that occurred here is subject to harmless error
analysis.” Alvarez v. State, 147 So. 3d 537, 543 (Fla. 2014). The State
seems to argue that the error is harmless because it contends that the
evidence against Defendants is strong. However, “the harmless error
analysis is not an ‘overwhelming-evidence test,’” but instead, “places the
burden on the state, as the beneficiary of the error, to prove beyond a
reasonable doubt that the error complained of did not contribute to the
verdict or, alternatively stated, that there is no reasonable possibility that
the error contributed to the conviction.” Ventura v. State, 29 So. 3d 1086,
1089 (Fla. 2010) (quoting State v. DiGuilio, 491 So. 2d 1129, 1138–39 (Fla.
1986)).
The State has not met its burden to prove beyond a reasonable doubt
that the error did not contribute to the verdict. Defendants’ theory of
defense at trial was that an employee of one of the Companies had
perpetrated the fraud, not Defendants or the Son. However, the detective’s
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testimony directly connected Defendant Wife to the fraud, identifying that
she had notarized some of the fraudulent documents. The detective’s
testimony established a direct connection to Defendant Wife because “[a]
notary public may not notarize a signature on a document unless he or
she personally knows, or has satisfactory evidence, that the person whose
signature is to be notarized is the individual who is described in and who
is executing the instrument.” § 117.05(5), Fla. Stat. (2018). Thus, the
detective’s testimony that Defendant Wife notarized forged deeds is strong
evidence of her knowledge of, and participation in, a fraudulent scheme.
Accordingly, the State cannot meet its burden to prove that the trial court’s
error in admitting the testimony did not contribute to the verdict.
Additionally, as stated in Proctor, an “[e]rror in admitting improper
testimony may be exacerbated where the testimony comes from a police
officer,” as there is “danger that jurors will defer to what they perceive to
be an officer’s special training and access to background information not
presented during trial.” 97 So. 3d at 315 (quoting Martinez v. State, 761
So. 2d 1074, 1080 (Fla. 2000)). Here, not only was there the usual danger
that the jury would defer to the detective based on perceived special
training, but the trial court’s explanations in front of the jury when ruling
on Defendants’ objections affirmatively indicated that the detective had
some relevant training and experience. Twice when Defendants objected
to the detective’s testimony, the trial court overruled the objections and
added that the detective could identify Defendant Wife’s signature because
of his “training and experience.” By stating this in front of the jury, the
trial court exacerbated its error in admitting the detective’s testimony by
indicating to the jury that the detective had some special training or
experience that allowed him to identify Defendant Wife’s signature.
Column H
Although Defendants raise three issues regarding the way in which the
trial court addressed an unauthorized document going into the jury room
during deliberations, we address only two of the issues, making the third
issue moot. 5 Additional background is needed for our analysis of the
issues.
5 Part of Defendants’ argument regarding Column H relates to the trial court’s
reconstruction of Column H while this appeal was pending. During this appeal,
it was discovered that the Chart containing Column H was apparently lost or not
properly saved in the circuit court record. However, because we agree that
Defendants’ other arguments regarding the Chart containing Column H are
dispositive, we find the reconstruction of Column H issue to be moot.
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Additional Background
At the beginning of trial, apparently to assist the jurors in taking notes,
the parties agreed to provide the jury with a chart (“the Chart”), which
listed the counts against Defendants, the corresponding property address,
the corresponding victims, and other information related to each count.
At the beginning of its deliberations, the jury sent a question requesting a
blank copy of the Chart. A six-page copy of the Chart was then provided
to the jury.
Further into the jury’s deliberations, the jury sent a note to the trial
court stating: “We just noticed that we have two spreadsheet
demonstrative aids. One version contains column H with notes. Can you
confirm we should have this?” The parties agreed to allow the bailiff to
retrieve the document in question and discovered that while the version of
the Chart which was given to the jurors before trial contained columns A–
G, the version given to the jurors at the beginning of its deliberations
contained an additional column, Column H. The State admitted that
Column H contained one of the prosecutor’s notes on the case, and that
Column “H should not have gone back” with the jury. Defendants’ counsel
pointed to several statements in Column H that he asserted were
prejudicial. The State contended in response that “most everything” in
Column H was evidence submitted during trial.
The trial court called the members of the jury into the courtroom and
placed them under oath. The trial court first questioned the foreperson,
who stated that he looked at Column H, considered Column H, and the
jury discussed Column H. The trial court then asked each individual juror
if he or she looked at Column H, and each responded in the affirmative.
The trial court then asked the foreperson if the jury considered Column H
“in terms of a verdict” or just looked at it. The foreperson responded that
the jurors were discussing the evidence, “[a]nd we saw something that …
[m]e, personally, just threw me off completely.”
Outside the jury’s presence, the trial court suggested that it dismiss
the jury for the day, partially, to allow Defendants time to file any
appropriate motions. After further discussions regarding how to handle
the situation, the trial court brought the jurors back into the courtroom
and informed them that they were going to return to the jury room so the
attorneys could consider what happened. When the trial court asked the
foreperson if he needed to make a phone call to discuss scheduling, the
foreperson stated: “I’m still thinking of what we saw. I mean, is that what
they are going to discuss?” The jurors went back into the jury room and
the trial court announced a ten-minute recess.
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After the recess, the trial court immediately announced it had decided
that it was going to cut Column H off the Chart and give a curative
instruction for the jury to disregard Column H and to keep deliberating.
The trial court also stated it was going to give “both [parties] copies of what
was sent back.” Defendants’ counsel moved for a mistrial and said that
there was “no curative instruction that you can unring the bell.” Further:
There are codefendants I haven’t been allowed to examine.
Full six pages [of the Chart]. And the one page I saw my
client’s names in bold. Everything else isn’t. I saw the names
of a codefendant whose information we deleted from the
charging document.
The trial court denied Defendants’ motion for mistrial. The State again
said that the information in Column H was elicited at trial, and Defendants
responded:
We’ve only been allowed to look at one of the pages. Defense
counsel has not been allowed to examine all six pages. [The
State] has to concede that one of the codefendants who aren’t
in trial whose information that’s been deleted is also in the
column. So what about that? There is no way to say that
without even looking at the other six pages to see what else is
in there that a curative can fix that.
What kind of curative –
The trial court interrupted Defendant’s counsel, said it reviewed all pages,
and that it made its ruling. The trial court brought the jurors into the
courtroom again and instructed the jurors to disregard Column H and to
continue deliberating.
Analysis
We address two challenges which Defendants raise regarding the trial
court’s handling of the unauthorized Column H going into the jury room.
First, Defendants argue that the trial court erred in denying their motion
for mistrial. Second, Defendants argue that the trial court erred in
responding to the jury’s question without giving them an opportunity to
be fully heard. We agree with both challenges and conclude the trial court
reversibly erred.
The Motion for Mistrial
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We review a trial court’s ruling on a motion for mistrial for an abuse of
discretion. Salazar v. State, 991 So. 2d 364, 371 (Fla. 2008). “As a general
rule, it is improper to allow materials into the jury’s deliberation room that
have not been admitted into evidence if the materials are of such character
as to influence the jury.” Gonzalez v. State, 136 So. 3d 1125, 1145 (Fla.
2014). No dispute exists that Column H should not have been given to the
jury. However, “jurors’ exposure to unauthorized materials is not per se
reversible error.” State v. Needelman, 276 So. 3d 444, 447 (Fla. 5th DCA
2019). Instead, “[o]nce it is determined that extrinsic information was
made available to the jury, ‘the State has the burden of proving that there
is no reasonable possibility of prejudice to the defendant. That is to say,
the State must demonstrate that the error was harmless.’” Id. (quoting
Williamson v. State, 894 So. 2d 996, 998 (Fla. 5th DCA 2005)). The
harmless error analysis “requires close scrutiny of the type of
unauthorized material at issue, its relation to the issues at trial, and the
extent to which jurors actually consulted the material.” State v. Hamilton,
574 So. 2d 124, 127 (Fla. 1991).
In reverse order of the harmless error analysis factors listed in
Hamilton, the jurors clearly consulted Column H. When the trial court
questioned the foreperson, he stated that he looked at Column H,
considered Column H, and stated that the jury discussed Column H. The
foreperson also described that when he saw Column H, it “personally ….
threw [him] off completely,” and later stated that he was “still thinking of
what we saw.” Each individual juror also acknowledged that they looked
at Column H. Therefore, the jurors extensively consulted the material.
Undeniably, the material was also related to the case. Column H
contains the prosecutor’s notes, organized count-by-count, and contains
notations on how the State thought it proved the counts.
Finally, for two reasons, the type of material in Column H warrants a
mistrial. First, although the State represented that “most” of the
information in Column H was elicited at trial, at least one entry contains
prejudicial information regarding an employee of one of the Companies
witnessing a co-defendant forging a signature. There was testimony at
trial that the co-defendant was associated with Defendants, and
Defendants’ theory of defense was that employee, not Defendants and the
Son, perpetrated the crimes. Therefore, the information in Column H
provided enhanced evidence of Defendants’ guilt and undermined their
defense.
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Second, even if all the information contained in Column H was
information elicited at trial, a mistrial was still required. We agree with
the Wisconsin Supreme Court analysis discussing a similar circumstance:
The trial court assumed that there was no prejudice because
the prosecutor’s notes only recited facts which were stated in
the prosecutor’s argument to the jury. However, this would
give the state an unfair advantage over the defense because it
would refresh the jurors’ minds as to facts favorable to the state
without the defense having before the jury in written form facts
favorable to the defendant which might have explained or
rebutted the facts contained in the prosecutor’s notes. The
error was prejudicial because it deprived the defendant of a
fair trial.
State v. Sawyer, 56 N.W.2d 811, 816 (Wis. 1953) (emphasis added). The
same is true here – the State was able to metaphorically sit in the jury
room with the jurors, and “explain” to them, point-by-point, count-by-
count, the evidence which it believed supported Defendants’ guilt, without
Defendants having an opportunity to respond.
The Curative Instruction
Although the trial court attempted to cure the prejudice of Column H
with a curative instruction, we also find two reasons why the curative
instruction was insufficient to cure the prejudice to Defendants. See
Smart v. State, 596 So. 2d 786, 787 (Fla. 3d DCA 1992) (“[W]e find that a
curative instruction would not have been sufficient to dissipate the
prejudicial effects of this error.”).
First, as explained above, and as was the case in Sawyer, the main
prejudice with Column H is not the extraneous information which the jury
could “disregard,” but instead, the juror’s exposure to “additional”
argument from the State. Thus, even disregarding what the jurors saw in
Column H, the jurors could not truly “disregard” their exposure to further
argument.
Second, the trial court gave the curative instruction abruptly after: (1)
informing Defendants and the jury that a recess would be taken to
properly address the matter; and (2) failing to give Defendants full access
to inspect the entirety of the Chart containing Column H which the jury
was given. This leads to Defendants’ second argument regarding the trial
court’s handling of Column H – the trial court erred in responding to the
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jury’s question without affording Defendants an opportunity to be fully
heard.
Florida Rule of Criminal Procedure 3.410(a) states that when jurors
request additional instructions after retiring to deliberate, any additional
instructions by the trial court “shall be given and the testimony presented
only after notice to the prosecuting attorney and to counsel for the
defendant.” Our supreme court has stated that it is “per se reversible error
… where a trial court responds to a jury’s question without giving counsel
notice and ‘the opportunity to participate in the discussion of the action to
be taken on the jury’s request.’” Mills v. State, 620 So. 2d 1006, 1007 (Fla.
1993) (quoting Ivory v. State, 351 So. 2d 26, 28 (Fla. 1977)). This is
because “communication with the jury is ‘so fraught with potential
prejudice that it cannot be considered harmless.’” Id. (quoting Ivory, 351
So. 2d at 28).
When the trial court announced it had decided to give a curative
instruction as to Column H, Defendants made it clear that they had not
had an opportunity to review the entirety of Column H. Even more,
Defendants made it clear to the trial court that they could not fully be
heard as to a curative instruction without having the opportunity to fully
review Column H. After the trial court stated it was going to give a curative
instruction, Defendants’ counsel began to ask, “What kind of curative –”,
but the trial court cut off defense counsel and declared that it “made [its]
ruling” and was “going to have the deputy bring the jurors in.” This was
error. See Thiefault v. State, 655 So. 2d 1277, 1278 (Fla. 4th DCA 1995)
(where unauthorized materials have been presented to the jury during
deliberations and the defense does not have the opportunity to address a
jury’s question, a curative instruction was not sufficient, and a mistrial
must be granted).
Conclusion
Having determined that the trial court erred in: (1) permitting the
detective to identify Defendant Wife’s and the Son’s signatures on
documents; and (2) its handling of the Chart improperly given to the jury
during its deliberations, we reverse and remand for a new trial.
Affirmed in part, reversed in part, and remanded for new trial.
GROSS and MAY, JJ., concur.
* * *
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Not final until disposition of timely filed motion for rehearing.
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